Pragmatism and Theory in English Law - College of Social Sciences ...

The Strengths of the Pragmatic Tradition 57
many middlemen, charterers, brokers and so forth, who
also may have no significant assets within the country
where they carry on business, although they might have
large claims for moneys due to them and might for brief
periods hold large sums of money in English banks. Claims
by cargo owners for damages against shipowners and charterers
were often frustrated by the inability of the plaintiffs
to lay their hands on any of this money, because the
moment that claims were threatened or writs issued, the
ships and money would disappear to foreign lands never to
be seen again. 17
The Mareva injunction was the answer to this problem.
The injunction is applied for ex parte, that is, without prior
notice to the defendant, which is of course a pretty drastic
procedure, and is only justified by the fact that the whole
point of the procedure is to restrain the defendant from
removing the assets from the jurisdiction. Strictly, the
proper course is to issue a writ, and have an affidavit
drafted and sworn, in which the plaintiff" sets out the nature
of his cause of action, asserts that he has grounds for believing
the defendant has assets within the jurisdiction, and
gives reasons to suppose that those assets may be removed.
The writ and the affidavit are not served on the defendant;
indeed, in cases of extreme urgency the application can be
made even before a writ is issued or an affidavit is sworn
simply on the information provided to the judge by counsel.
The application is of course made in chambers in private,
and as I have said, ex parte, asking the court to make an
order restraining the defendant from removing his assets or
sometimes even from dealing with them, as where the assets
17 See generally the account given by KerrJ. of the origins of the Mareva
injunction in The Siskina \ 19791 A.C. 210.'